Delhi District Court
In State Of H.P. vs . Gian Chand (2001 (6) Scc on 15 February, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No.89/2 dated 12.02.2007
Date of Decision: 15.02.2007
State V.
1. Pawan Goyal
Son of Sh. Rameshwar Dass
R/o A-50, Vipin Garden,
Uttam Nagar,
New Delhi.
2. Bal Kishan
Son of Kanhiya Lal
R/o Village Daulat Pur
PS Kudha Band Pur
Distt Begusarai,
Bihar. ( Since Proclaimed Offender )
FIR No. 437/03
PS Uttam Nagar
U/s. 376, 506, 451 IPC
JUDGMENT
1. Pawan Goyal accused has been facing trial for offences u/s 376 & 506 Part-II, IPC, on the allegations that on 10/06/2003 at house no. 50-B, Vipin Garden, Uttam Nagar, he committed rape on female child aged 12 years and threatened her with death.
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2. Case of prosecution is that the prosecutrix- female child, aged 12 years, used to serve as maid at the house of Pawan Goyal accused at a monthly salary of Rs. 1000/-. The prosecutrix used to live in a room in the upper portion of the same house, after her daily work was over. Accused Pawan Goyal used to reside in the lower portion of the house with his family. Pawan Goyal used to keep an evil eye on her. On 10.06.03, he is alleged to have ravished the prosecutrix and then criminally intimidated her. The prosecutrix continued working as maid in the same house even thereafter. However, she also used to visit the house of her relatives situated in Hari Vihar, Old Palam Road, Kakrola.
3. Case of prosecution is that Bal Kishan accused (since proclaimed offender) hailing from the native village of the prosecutrix, also used to visit her. He too was keeping an evil eye on her. On 11.06.03, said Bal Kishan is also alleged to have ravished the prosecutrix and then threatened her with dire consequences.
4. Further, it is case of prosecution that on the next date, after finishing her work, the prosecutrix went to her father and narrated the occurrence. Matter was reported to 3 the police of PS Uttam Nagar where DD NO. 16A was recorded to the effect that the prosecutrix has been subjected to rape by the landlord.
5. SI Jitender Kumar of PS Uttam Nagar accompanied by Ct. Satish Kumar, the prosecutrix and her father reached house of Pawan Goyal accused whereupon he was apprehended as pointed out by the prosecutrix. Thereafter, Pawan Goyal accused and the prosecutrix were taken to hospital and got medico legally examined. Undergarments of Pawan Goyal accused were seized by the doctor. Blood sample of Pawan accused was also taken and sealed into a parcel. Pawan Goyal accused is alleged to have not co- operated in giving sample of semen. Undergarments of the prosecutrix were also seized. Present case was registered on the statement made by the prosecutrix before SI Rajni Chopra. The prosecutrix was also subjected to bony age examination/test. Dr. Sachin Tandon opined that radiological bone age of the prosecutrix was more than 10 years but less than 14 years. On 13.06.03 statement of prosecutrix was recorded U/s. 164 CrPC Statements of witnesses were recorded. Rough site plan of the place of occurrence was 4 prepared. The two sealed parcels collected from the hospital alongwith a sample seal were deposited by the investigating officer with MHC(M) with seals intact. Thereafter, on 25.08.03 the sealed parcels and the sample seal were sent to FSL for analysis. Report was collected from FSL. Despite search, Bal Kishan accused (since proclaimed offender) was not traceable. Non bailable warrants were got issued against him. Ultimately, he was to be got declared proclaimed offender. On completion of investigation, challan was put in court.
6. After compliance with provisions of section 207 CrPC case came to be committed to the Hon'ble Court of Session. Prima facie case having been made out, charge for offences U/s. 376 and 506 Part II IPC was framed against accused Pawan Goyal on 15.10.03. Since he pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
7. In order to prove its case, prosecution examined 13 witnesses:
Prosecutrix has stepped into the witness box as PW1 and narrated the manner in which the occurrence took place.5
PW2 Smt. Rajwant Kaur, special Police Officer, of PS Uttam Nagar simply deposed that inquiry was made from the prosecutrix in her presence by the police and that statement of the prosecutrix was recorded.
PW6 is mother of the prosecutrix. PW5 ASI Ved Prakash has proved recording of FIR Ex.PW5/A. Medical evidence is available in the statements of PW3 Dr. Vivek Govil, PW7 Dr. Sachin Tandon and PW8 Dr. Aruna.
PW9 Dr. Rajat Mishra,Director of Swanchetin has deposed to have met the prosecutrix on 13.06.03 at police station Uttam Nagar for counseling, and also narrated as to what was told by the prosecutrix to him and Dr. Nidhi accompanying him at that time.
PW4 HCVirender Singh, PW10 Women Ct. Florence, PW11 Ct. Devender Kumar, PW12 Ct. Satish Kumar and PW13 HC Kamla deposed about the investigation part of the prosecution story.
8. When examined U/s. 313 CrPC, the accused admitted that the prosecutrix was working at his house as 6 domestic help in the year 2003 and that she used to stay in the same house. However, he denied to have committed any wrong act with the prosecutrix on 10.06.03 or that the prosecutrix told Dr. Rajat Mishra and Dr. Nidhi that he and another had sexually assaulted her.
The accused, however, admitted that he was arrested by the police on 13.06.03 at the pointing out of the prosecutrix; that he was medico legally examined at Shastri Park Hospital on 14.06.03 by Dr. Vivek Goyal and that the doctor seized his undergarment and also took his blood sample and handed over the same to police.
The defence plea put forth by the accused reads as follows:
" (Prosecutrix) used to go to Bal Kishan in night. I caught her with Bal Kishan on 11.06.03 and gave beatings to her. I called her father. Father of (prosecutrix) told me that since mother of (prosecutrix) had gone to village, he will not keep her and (prosecutrix) was left at Chander Vihar, at the house of her sister. Bal Kishan ran away and I was 7 named falsely."
9. Learned Addl. Public Prosecutor has argued that from the medical evidence it stands established that on the day of commission of offence the prosecutrix was aged about 14 years and from the statement of the prosecutrix u/s 164 Cr.P.C. it stands proved that Pawan Goyal accused committed rape on her on 10/6/2003 whereas her co-villager Bal Kishan ravished her on 11/06/2003. So, it has been argued that prosecution case stands established. It has also been submitted that FSL report also supports the case of prosecution regarding commission of rape on the prosecutrix.
On the other hand, ld. defence counsel has argued that there is delay in recording of statement of the prosecutrix which creates doubt in the version put forth by the prosecution regarding commission of rape on her. In this respect ld. defence counsel has referred to the evidence available on record i.e. in the shape of copy of DD no. 16-A dated 12/06/2003, and statement EX.PW-1/A made by the prosecutrix, FIR Ex.PW-5/A and entries made in MLC Ex.PW- 8/A.
10. As per prosecution version, prosecutrix was 8 subjected to rape on 10/06/2003 and 11/06/2003. Present case came to be registered on 13/06/2003 at 08:10 a.m. It is available from record that information reached P.S. uttam Nagar on 12/6/2003 at 08:10 p.m. that a female child aged 13 years had been subjected to rape in the area of Vipin Garden. Thereupon SI Jitender Kumar and Ct. Satish reached A-50, Vipin Garden, Uttam Nagar. It does not find mentioned in any document of the prosecution that prosecutrix or any member of her family was accompanying SI Jitender Kumar and Ct. Satish Kumar but according to PW-12 Ct. Satish Kumar when he accompanied by SI Jitender reached A-50, Vipin Garden, Uttam Nagar, the prosecutrix and her father Brahm Dev were accompanying them. There is no explanation on record as to who informed police of PS Uttam Nagar at 08:10 p.m. on 12/06/2003 about commission of rape. Brahm Dev father of the prosecutrix has not been examined in court. Prosecutrix herself while appearing in the witness box as PW-1 deposed that she went to her father, and her father telephonically informed police. Case of prosecution is that during those days prosecutrix used to serve as domestic help at the house of Pawan Goyal accused situated at Vipin Garden, Uttam Nagar 9 whereas her father was statedly residing in Hari vihar, in the area of Kakrola Mor, New Delhi. But there is nothing on the statement as to on which date she went to her father's house situated at Hari Vihar to apprise him of the occurrence. According to PW-6 Meera Devi, mother of the proseuctrix, on10/11-6/2003 she was away to her native village in Bihar and she returned from there 10-15 days thereafter. Fact remains that there is nothing in her statement as to on which date the prosecutrix went to the house of her father.
11. Investigating officer has not been examined in this case. Even SI Jitender has not been examined. The fact remains that there is no evidence on record to corroborate the version narrated by PW-12 Ct. Satish Kumar that at the time he and SI Jitender reached A-50, Vipin Garden, prosecutrix and her father were accompanying them. There is also no corroboration to the statement of PW-12 on the point that it was the prosecutrix's father who pointed out towards Pawan Goyal accused stating that he had committed rape on his daughter. With non-examination of SI Jitender and SI Rajni Chopra, the Investigating Officer, contents of ruqqa have also not been got proved. Therefore, there is nothing on record to 10 suggest as to at what time and place police of P.S.Uttam Nagar contacted the prosecutrix and her father on 13/06/2003.
PW-12 Ct. Satish Kumar nowhere deposed about recording of statement of the prosecutrix in his presence. MLC Ex.PW8/A would reveal that prosecutrix was got admitted at DDU hospital on 12.06.03 at 11.20 pm. At that time, SI Rajni Chopra, the investigating officer was accompanying her. At the time of medico legal examination by Dr. Archana, the prosecutrix did not name anyone while giving alleged history of sexual assault. As per FIR Ex.PW5/A, statement of the prosecutrix reached police station Uttam Nagar at about 8.10 a.m. on 13.06.03. But as noticed above , there is nothing on record to suggest as to at what time statement of the prosecutrix was recorded on 13.06.03. As noticed above, occurrence is alleged to have taken place on 10.06.2003 and 11.06.2003 and so far as Pawan Goyal accused is concerned, he is alleged to have committed rape on 10.06.03. There is no satisfactory explanation to suggest as to what led the prosecutrix to make statement before the police after three days i.e. on 13.06.03. Thus, when 11 prosecution has failed to explain delay in reporting of matter to the police and prosecution has not been able to prove as to at what time on 13.06.03 statement of the prosecutrix was recorded, delay in registration of this case, puts the court on guard to carefully scrutinize the version narrated by the prosecutrix, particularly when there is no corroboration from independent source.
12. As regards commission of rape on her person, the prosecutrix deposed in court on 31.03.04 that one day (date not given) at 10 pm., while she was sleeping on the roof of the house of accused Pawan Goyal, he came there and did commit wrong act with her. It is in her cross examination that she used to sleep in a room on the first floor of the same house; that nobody could reach the roof where she used to sleep, for the reason that there was a gate outside the staircase and that gate used to be locked at night; that staircase also used to be locked during at night; that key of the staircase used to be with Neelam, wife of Pawan Goyal accused; that nobody could enter the staircase without obtaining key from Neelam. During investigation, Neelam- wife of accused appears to have not been joined in the 12 investigation by the investigating officer to find out as to whether she was having key of the door of the gate or that of the staircase or that her husband collected the keys from her and then went to the roof, so as to establish that there was possibility of Pawan Goyal accused going to the room of the prosecutrix so as to commit this crime. This fact adversely affects the case of prosecution so far as the version put forth by the prosecutrix regarding commission of rape on her person is concerned particularly when medical evidence does not lend any corroboration thereto.
13. The prosecutrix was medico legally examined on 12.06.2003 at 11.20 p.m, at DDU Hospital by Dr. Aruna vide her observations recorded in MLC Ex.PW8//A found that there was no fresh external injury or blood. Similarly, on 13.06.03 at 2.30 am, when the prosecutrix was subjected to gynae examination by Dr. Preeti Aggarwal she did not observe any fresh tear or bleeding. It is true that Dr. Preeti Aggarwal opined that possibility of rape on the person of the prosecutrix could not be ruled out. But the doctor did not give definite opinion on this aspect. Furthermore, Dr. Preeti Aggarwal has not been put into the witness box to prove this 13 opinion regarding possibility of rape.
14. It is true that absence of injury to hymen of a girl under 12 years does not rule out the act of rape, and passage of male organ across the labia majora is sufficient. In such a situation, labia majora are the first to be encountered by the male organ. They get blunt forceful blow, depending on the vigour and force used by assailant and counteracted by victim. Therefore, in case of girl under 12 years, examination of labia majora gives conclusive evidence. Forceful blow on the labia invariably leads to contusion, because of looseness and vascularity. Against the pink background of the mucous membrane dark red contusion is visible even on initial inspection. Examination of victim for marks of injuries like arms, thighs, breast, face and neck also forms a very important piece of evidence in case of genuine rape and clearly indicate violence encountered due to lack of consent. But in this case, at the time of medico legal examination neither any blood nor contusion on the labia majora was noticed by the doctor. Even no sign of struggle was noticed on the person of the prosecutrix. Thus, in this case medical evidence does not lend any positive corroboration to the 14 testimony of the prosecutrix.
15. It is pertinent to mention here that at the time the prosecutrix was subjected to gynae examination by Dr. Preeti Aggarwal, the prosecutrix did not name Pawan Goyal accused as the culprit for sexual assault. Rather, as per alleged history recorded therein by Dr. Preeti Aggarwal, the prosecutrix was subjected to sexual assault on 11.06.03 and that too by Bal Kishan.
16. A perusal of cross examination of the prosecutrix recorded on 06.09.04 would reveal that she did not level any allegation against Pawan Goyal accused. Relevant portion of her cross-examination recorded on 06.09.04 reads as under:
" It is correct that because of darkness I have not seen accused Pawan Goyal who committed wrong act with me. It is correct that I have not heard the cries but the voice of Pawan in the room. It is correct that I have named Pawan only because of the reasons that I thought the person who committed wrong act with me be Pawan as he was residing on the 15 ground floor in the same building in which I was residing. It is correct that I have taken the name of Pawan in my statement at the asking of my father. My father had died one year back. I am illiterate. Prior to working at the house of Pawan, I was doing a work of part time as maid servant at another house. It is correct that I have been raped only,one day, and only once. It is correct that Pawan had not committed rape on me. Pawan was not present at the time. I was raped by accused Bal Kishan (P.O.) Pawan had not pressed my mouth at any point of time."
So, prosecutrix has totally absolved Pawan Goyal.
17. As noticed above, prosecution has not examined investigating officer. Case of prosecution is that during investigation two sealed parcels alongwith sample seal were deposited by the investigating officer in the malkhana on 13.06.03. Similarly, on the night intervening 13/14.06.03 two 16 more parcels and a sample seal were deposited by the investigating officer with the MHC(M). All these parcels were then sent to FSL on 25.08.03 through woman SI Rajni. To rule out possibility of tampering with the case property, it was for the prosecution to examine the investigating officer. Non- examination of the investigating officer thus further adversely affects the case of prosecution as neither seizure of the sealed parcels has been proved nor possibility of tampering with the case property has been ruled out. Surprisingly, in this case, prosecution did not tender into evidence reports received from FSL. When prosecution has failed to rule out possibility of tampering with case property, no reliance can be placed on the FSL reports available on record so as to show that Pawan Goyal accused committed rape on the prosecutrix.
18. Since the prosecutrix has not raised any accusing finger against Pawan Goyal accused, in view of the above discussion, I do not find any merit in the contention raised by on behalf of the prosecution that in statement u/s 164 Cr.P.C. the prosecutrix levelled specific allegations against Pawan Goyal and as such he is liable for commission of the crime. 17
19. Prosecution has also examined PW-9 Dr. Rajat Mishra, Director, Swan-Chetin. According to PW-9 on 13/06/2003, during the night, she accompanied by Dr. Nidhi went to P.S. Uttam Nagar for counselling and met the prosecutrix. She further deposed that the prosecutrix kept on repeating one name and seemed agitated. However, she again stated that the prosecutrix had not named any person but she talked of a person who used to live near her house. The witness went on to state that prosecutrix named Pawan as the person who had assaulted her and who was her employer. It may be mentioned here that Dr. Nidhi, companion of Dr. Rajat Mishra has not been examined. Further more, PW-9 has not proved on record any report prepared by her or Dr. Nidhi regarding counselling. In her cross examination PW-9 denied that prosecutrix made any statement to the police in her presence. Therefore, statement of PW-9 Dr. Rajat Mishra also does not support the case of prosecution.
20. All this goes to show that prosecution has miserably failed to establish that the prosecutrix was subjected to rape or that Pawan Goyal accused subjected the prosecutrix to 18 rape on 10.06.2003.
In State of Punjab V. Gurmit Singh, 1996 (2) SCC 384 (Para 21),Hon'ble Supreme Court observed as under:
" If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual mole-stations"
In Madan Gopal Kakkad v. Naval Dubey and 19 Anr. , (1992) 3 SCC 204, the Hon'ble Supreme Court has held (vide Para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.
It is also well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge ( See Dilip V. State of M.P. SCC 2001(9)P/452)(Supra).
In State of H.P. Vs. Gian Chand (2001 (6) SCC p/71), on a review of decisions earlier given by the Hon'ble Supreme Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix 20 corroborated by the medical evidence and other circumstances such as the report of chemical examination etc, if the same is found to be natural, trustworthy and worth being relied on.
21. As discussed above, medical evidence does not support the version narrated by the prosecutrix that she was subjected to sexual assault and the prosecutrix, in her cross examination clearly stated that Pawan Goyal accused did not commit rape on her or pressed her mouth at any point of time. Therefore, no reliance can be placed on the version narrated by the prosecutrix in her chief examination so far as Pawan Goyal accused is concerned.
22. For the foregoing reasons and finding that prosecution evidence is not cogent or trustworthy, accused Pawan Goyal cannot be held liable for the offences with which he has been charged. Therefore, he deserves to be acquitted of the charges leveled against him. Consequently he is acquitted of both the charges leveled against him. Case property be kept intact as per rules.
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File be consigned to record room u/s 299 Cr.P.C. so far as Bal Kishan accused is concerned.
Announced in open court. (NARINDER KUMAR) Dated: February 15th , 2007 ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI